Thus the horse which I bought when exposed for sale in the
public market, under conditions regulated by the municipal law,
becomes my property if all the conditions of purchase and sale have
been exactly observed in the transaction; but always under the
reservation that the real owner continues to have the right of a claim
against the seller, on the ground of his prior unalienated possession.
My otherwise personal right is thus transmuted into a real right,
according to which I may take and vindicate the object as mine
wherever I may find it, without being responsible for the way in which
the Seller had come into possession of it.
It is therefore only in behoof of the requirements of juridical
decision in a court (in favorem justitae distributivae) that the right
in respect of a thing is regarded, not as personal, which it is in
itself, but as real, because it can thus be most easily and
certainly adjudged; and it is thus accepted and dealt with according
to a pure principle a priori. Upon this principle, various statutory
laws come to be founded which specially aim at laying down the
conditions under which alone a mode of acquisition shall be
legitimate, so that the judge may be able to assign every one his
own as easily and certainly as possible. Thus, in the brocard,
"Purchase breaks hire," what by the nature of the subject is a real
right- namely the hire- is taken to hold as a merely personal right;
and, conversely, as in the case referred to above, what is in itself
merely a personal right is held to be valid as a real right.
Pages:
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133